Itself only in those cases in which the contract contains

apt words to bind him personally, or in which he has

pledged his personal responsibility. In other cases the

action should be, not on the contract, but on the express

or implied warranty of authority.

See Patterson v. Lippincott, 47 N. J. L. 457, 54 Am. Rep. 178, Cas.

Ag. 507; Ogden v. Raymond, 22 Conn. 379, 58 Am. Dec. 429; McCurdy

V. Rogers, 21 Wis. 197, 91 Am. Dec. 468; Thilmany V. Iowa Paper Bag

Co., 108 Iowa, 357, 75 Am. St. Rep. 259.

§ 198. Limitations.— But to make the agent liable in

any case, the contract must be one which would have

§§ 198-199.] DUTIES OF AGENT TO THIRD PERSONS. 1 05

been enforceable against the principal if the agent had

been authorized to make it.

See Baltzen v. Nicolay, 53 N. Y. 467.

There is no implied warranty by the agent that the

principal has authority to make the contract. "He

simply covenants that he has authority to act for his

principal, not that the act of the principal is legal and

binding."

See Thilmany v. Iowa Paper Bag Co., 108 Iowa 357, 75 Am. St.

Rep. 259.

If the agent makes no express representation as to

his authority, and fully and fairly discloses to the other

party all the circumstances connected with it, so that

the other party can judge for himself whether the agent

Is authorized, the agent will not be liable.

See Thilmany v. Iowa Paper Bag Co., supra.

2. Where there was no responsible Principal.

§ 199. Agent liable if no principal in existence. —

For reasons analogous to those referred to in the pre-

ceding sections, one who assumes to act as agent for a

principal having no legal existence — as, for example, a

committee, a voluntary society, an alleged corporation

whose corporate existence has failed or expired, and

the like — must usually be personally liable. There is

no principal to be held, it was clearly the intention that

some one should be bound, and the responsibility for

the contract must ordinarily fall upon the pretended

agent.

This liability, as in the preceding cases, may be upon

the contract itself where it contains apt words to create

such a liability, or upon the express or implied war-

ranty of the existence of a principal.

As in the preceding cases also, it is immaterial that

106 Duties of agent to third persons. [в§в§ 199-201.

the pretended agent acted in good faith : even if he were

entirely innocent the responsibility must still fall upon

him.

See Lewis v. Tilton, 61 Iowa 220, 52 Am. Rep. 436, Cas. Ag. 510;

Clark r. O'Rourke, 111 Mich. 108, 66 Am. St. Rep. 389; Fredenhall v.

Taylor, 26 Wis. 286; Winona Lumber Co. v. Church, 6 S. Dak. 498;

Lawler t. Murphy, 58 Conn. 294, 20 Atl. Rep. 457, 8 L. R. A. 113;

Codding v. Munson. 52 Neb. 580, 72 N. W. Rep. 846, 66 Am. St. Rep.

524.

§ 200. Principal dead. — This rule, however, does

not, it is held, apply in a case wherein, while there has

been a responsible principal, he has, without the knowl-

edge of the agent or the other party, died before the

contract in question was made. The death of the prin-

cipal is usually a fact equally within the knowledge of

both parties, and, if so, the agent cannot be deemed

guilty of a wrong or omission in failing to know of it.

See Smout v. Ilbery, 10 Mees. & Wels. 1.